Heading Over Now and A Prediction

About to head over to the Court. Chance of thunderstorms and an already-existing line shall not stop my final campout of the term.

After my obligatory “First” or “Not-so-First” photo up here, I will switch to my Twitter feed to send sporadic stati throughout the night.

Meanwhile, here’s a quick McDonald prediction based upon the oral argument:

Roberts, Scalia, Kennedy, and Alito for full incorporation Heller‘s federal vision of the Second Amendment to the states via the Substantive Due Process doctrine. Maybe a few concurrences–Scalia explaining himself for why he’s accepted SDP, distinguishing its use for incorporation purposes as a matter of stare decisis while still hating on it as a tool for finding unenumerated constitutional rights; Kennedy, in response, trumpeting the “liberty” component of the Due Process Clause for protecting and incorporating both enumerated and unenumerated rights.

Thomas concurring in the judgment for full incorporation via the Privileges or Immunities Clause of the Fourteenth Amendment, arguing that the Court missed its chance to overturn Slaughterhouseand right a longstanding constitutional wrong.

Stevens concurring in part and dissenting in part, joined by Sotomayor, agreeing with the plurality to incorporate via SDP, but arguing for a more limited scope of incorporation allowing for the states for more breathing room in instituting gun control laws. Although Stevens was the lead dissenter in Heller, he will provide a final example of his “judicial conservatism” by abiding by stare decisis in recognizing the individual right to keep and bear arms. In doing so, however, he will work from the “inside” in a futile attempt to limit what he will present as the deleterious societal effects and misguided interpretive history of the Court’s prevailing gun rights jurisprudence. Sotomayor will sign because she joined the Court after the Heller decision and would therefore feel improper rejecting it outright.

That’s 7-2 for incorporation; 6-3 for incorporation via the Due Process Clause; 5-4 for full incorporation. Alito hasn’t yet written a majority opinion from the February sitting, so he’s due. But I wouldn’t be surprised if the Chief or Scalia end up as the author. Nor would I be surprised if any or all details of my prediction above, except for the 5-4 for full incorporation, will prove completely wrong.

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3 Responses

So any plans to come back and comment on what surely must be a disappointing dissent give you wrote:
“Although Stevens was the lead dissenter in Heller, he will provide a final example of his “judicial conservatism” by abiding by stare decisis in recognizing the individual right to keep and bear arms.”

Also any thoughts on Sotomayor’s 180 degree flip flop from her confirmation testimony regarding RKBA?

1) Stevens apparently felt strongly enough that the Heller majority was wrong that he could not follow the precedent. But most of his dissent had nothing to do with guns, but rather the standard for substantive due process, which he thinks the conservatives have pinched beyond recognition. Note that he did not join Breyer’s dissent, nor did Breyer (w/ RBG and SMS) join Stevens’s.

2) My thoughts are that the Sotomayor hearings represented the bottoming out of the post-Bork confirmation hearings. Her handlers did not want a fight, especially one with ugly racial over(and under)tones, so they just had her be as robotic as possible–even if that meant agreeing to respect gun rights. She did what she had to do in today’s confirmation hearing climate, and that’s a tragedy both for her and for our politics.

But this game can be played anywhere: Roberts’s commitment to stare decisis, however earnestly spoken, cannot survive Citizens United, even with his concurrence explaining himself. In fact, I anticipate that his CU concurrence will be used time and again by both sides to overturn precedents either finds politically distasteful. It will allow Roberts to overturn Roe, even though he called it a “super-duper precedent” at his hearings; it will allow Soto and Kagan to overturn Heller and McD if the libs get a majority in the next decade or two.